1. This second appeal arises out of a suit brought by the plaintiffs for continuation of possession after declaration of the plaintiffs' ryoti right to the land in suit.
2. The history of the land is sufficiently set out in the preamble to the judgment of the lower Appellate Court. It appears that in the re visional Settlement after a dispute under Section 103 of the Bengal Tenancy Act the Assistant Settlement Officer found that the plaintiffs-appellants were in possession, but that the respondent No. 1 was a raiyat, so the appellants were recorded as shikmi raiyats under the respondent No. 1, though the parties both deny the relationship of tenant and under-tenant as between themselves.
3. The learned Munsif in the first Court dismissed the plaintiffs' suit, on the ground that they had not succeeded in getting rid of the presumption raised by the Record of Rights. The learned Judge in the Court below has set aside the judgment and decree of the Munsif and has given the plaintiffs a decree declaring their ryoli right to the land in suit and confirming their possession. Incidentally the learned District Judge in the Court of Appeal below has found as a fact that Jagannath, the ancestor of! the defendants, was a non-occupancy, raiyat, though he has held erroneously as has now been decided by authority, that such a right is not heritable. He has, however, further found as a fact that there was relinquishment of the tenancy by the act of defendant No. 4 and by the acquiescence of the other defendants who, he found, were never in possession. He has, therefore, reversed the Munsif's decision and found for the plaintiffs.
4. In appeal it is urged that the heritable non-occupancy right of the defendants Nos. 1 and 2, who are the appellants before us, cannot be defeated by the act of relinquishment of defendant No. 4 or by the mere non-payment of rent by the other defendants. There is 0110 rather important fact which the learned Judge thinks has not much to do with the question, that is, that the origin of the tenancy was an undertaking of Jagannath to conduct the worship of the thakur as shebait in lien of rent. This point he says is made much of by the respondents and in the appeal before us their learned Vakil also pressed it as most important. Hut in the face of the Judge's finding that there was virtual relinquishment by the defendants of the holding by reason of their never taking the tenancy and allowing their co-tenant who was in possession to abandon, it seems to us that this fact goes strongly against the defendants' case. If the worship of the thakur was a necessary condition of their tenancy, the entire neglect to take possession and carry on the worship would, in our opinion, amount to such evidence of relinquishment and repudiation as would cover the rule laid down in the recent Full Bench ruling in Dayamoyi v. Ananda Mohan Roy Chowdhury 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172. The substantial effect of the defendants Nos. I and 2's conduct would be a relinquishment or repudiation of the tenancy.
5. The case is not altogether free from difficulty, but on full consideration we are of opinion that it is concluded by the findings of fact in the lower Appellate Court. The appeal is, therefore, dismissed with costs.